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District Court 16 September 2011

R v John SMITH*

[2011] NSWDC 233

Sexual offences
CRIMINAL LAW PROCEDURE FITNESS TO BE TRIED.

Citation: R v John Smith [2011] NSWDC 233
Court: District Court of New South Wales
Date: 16 September 2011
Judge: Cogswell SC DCJ

Background

The accused faced serious charges of sexual assault alleged to have been committed against persons under 16 years of age in the early to mid-1990s. He had not yet been arraigned. Before proceedings advanced further, questions arose about his capacity to stand trial.

Two expert reports were tendered: a neuropsychological report from Dr Susan Pulman (dated 12 November 2010) and a forensic psychiatric report from Dr Stephen Allnutt (dated 27 June 2010). Both experts identified concerns about the accused's cognitive functioning, particularly his ability to encode new information, arising from a history of alcohol dependence and a serious traumatic injury.

Both Crown and defence counsel agreed that the reports raised a genuine question of unfitness to be tried. The inquiry was conducted on a non-adversarial basis, consistent with the requirements under the Mental Health (Forensic Provisions) Act 1990.

  • Whether the accused was fit to be tried within the meaning of the Mental Health (Forensic Provisions) Act 1990, s 12
  • Whether the accused satisfied the criteria for fitness to stand trial established in Regina v Presser [1958] VR 45, specifically in light of his retrograde amnesia and impaired capacity to encode new material

Decision

Dr Pulman's neuropsychological assessment identified difficulties in encoding new information that she considered likely to affect the accused's fitness to stand trial. She recommended psychiatric review to determine whether self-reported memory difficulties had a psychological basis. Dr Allnutt conducted that review and found mild depressive symptoms consistent with an adjustment disorder, together with retrograde amnesia that left the accused with no recollection of the circumstances surrounding the alleged offences.

Despite these findings, Dr Allnutt concluded on balance that the accused was fit to stand trial. He noted that the accused demonstrated a relative ability to encode new material in the context of his legal proceedings. The accused understood the nature of the charges, the available pleas and their consequences, the role of the court, and the nature and use of evidence. He had also engaged meaningfully with his legal representatives and was capable of providing his version of events even without direct memory of the alleged conduct.

His Honour accepted Dr Allnutt's evidence and was satisfied that all of the Presser criteria were met. The court acknowledged a residual concern, shared by Dr Allnutt, about the accused's ability to follow the course of proceedings. On balance, however, and applying the balance of probabilities standard required by s 12 of the Act, the court found the accused fit to be tried.

His Honour noted that fitness can be revisited at any time under the Act. If the concerns about the accused's capacity to follow proceedings were borne out during trial, the issue could be raised again at that point.

Orders Made

  • The accused was found fit to be tried
  • The matter was listed for a telephone callover on Wednesday, 19 October 2011
  • Bail was continued on existing conditions

Key Takeaways

  • Fitness to stand trial in New South Wales is assessed against the criteria in Regina v Presser, which examine whether an accused understands the proceedings, can follow their course, and can meaningfully assist in their own defence.
  • Under s 12 of the Mental Health (Forensic Provisions) Act 1990, fitness is determined on the balance of probabilities, and the inquiry need not be conducted in an adversarial manner.
  • The District Court confirmed that retrograde amnesia alone, including a complete inability to recall the circumstances of the alleged offences, does not automatically render an accused unfit to be tried; the more critical question is the capacity to encode new material and engage with current proceedings.
  • A finding of fitness at the pre-trial stage is not necessarily final. The Act expressly permits the question of unfitness to be raised at any subsequent stage if concerns materialise during the trial itself.
  • Where naming an accused would tend to identify an alleged victim of sexual assault, the court noted that publicising that identity outside the courtroom may constitute a criminal offence under New South Wales law.

Legislation and Cases Referenced

Legislation
- Mental Health (Forensic Provisions) Act 1990 (NSW), s 12

Cases
- Regina v Presser [1958] VR 45; [1958] ALR 248